Switchboard, from NRDC › David Doniger's Blogtag:switchboard.nrdc.org,2015:/blogs/ddoniger//382015-07-28T00:12:02ZMovable Type Pro 6.0.7Achingly Slow Talks on HFC Super-Pollutants -- NRDC Offers IMPACT Tool to Jumpstart Progresstag:switchboard.nrdc.org,2015:/blogs/ddoniger//38.187842015-07-26T13:34:19Z2015-07-28T00:12:02ZDavid Doniger
<p>David Doniger, Director, Climate and Clean Air Program, Washington, D.C.</p>
<p><span style="line-height: 1.62;">Countries made achingly slow progress towards curbs on the super heat-trapping pollutants called hydrofluorocarbons (HFCs), at Montreal Protocol talks in Paris this week. In an effort to jumpstart progress, NRDC launched a new analytical tool to compare competing HFC phase-down proposals.</span></p>
<p><img src="http://switchboard.nrdc.org/blogs/ddoniger/assets_c/2015/07/HFC%20plenary%20OEWG%2036-thumb-500xauto-20730.jpg" width="500" height="375" alt="HFC plenary OEWG 36.JPG" class="mt-image-none" style="line-height: 1.62;" /></p>
<p><b>Slow-Motion Progress </b></p>
<p>The vast majority of the world's nations support using the successful treaty that saved the ozone layer to phase down production and consumption of HFCs, the fastest growing set of climate-changing pollutants. HFCs are manufactured chemicals used in air conditioning and other applications. They have up to 10,800 times the heat-trapping power of carbon dioxide, on a pound for pound basis. Scientists tell us they could amount to as much as a quarter of all the heat-trapping pollution in 2050 if their growth continues.</p>
<p>There a<span style="line-height: 1.62;">re now four concrete proposals on the table for amending the treaty to phase down HFCs - one each from the three North American countries, eight island nations, India, and the European Union. (A chart comparing them is </span><a href="http://switchboard.nrdc.org/blogs/ddoniger/progress_on_phasing_down_hfcs_.html" style="line-height: 1.62;">here</a><span style="line-height: 1.62;">.) In plenary sessions, delegates from well over 100 countries very constructively debated the four proposals for four days, comparing and contrasting them through detailed questions and answers. Dozens of countries expressed greater support and impatience to move forward than ever before.</span></p>
<p>But detailed negotiations on treaty amendments are not actually conducted in the plenary. Detailed negotiations take place in a "contact group" made up of those countries most interested in the nitty-gritty. For <i>seven years</i> amendment proponents have sought to form that contact group and get negotiations under way. Over time nearly all of the initial opponents, including China and India, have come on board - India, as noted, has its own phase-down proposal; China also supports a phase-down and is playing a constructive role. By the last two meetings in November and April, the band of blockers had dwindled to Saudi Arabia, Kuwait, a handful of Gulf States, and Pakistan.</p>
<p>In April, the <a href="http://switchboard.nrdc.org/blogs/ddoniger/deal_on_hfc_super-pollutants_i.html">blocking tactics</a> of the Saudis and their allies came under fierce criticism from the African Group, which supports an HFC amendment. By June, it appeared that a path forward to start actual negotiations this week might finally have been found.</p>
<p>Not so lucky. The Saudis shifted tactics this week, declaring themselves now willing to allow a contact group, but only with complex preconditions on what may be discussed and in what order. After eating up an entire week, the Saudis moderated their conditions enough that it seemed a contact group agreement might come together on Friday, allowing true negotiations finally to begin at the next meeting.</p>
<p>But Pakistan remained an outright blocker.</p>
<p>The Montreal Protocol parties operate by consensus, but that does not mean unanimity. They have shown themselves willing to press ahead in the past if only a few countries object to the will of the overwhelming majority. Given the late hour, there wasn't time to try to override Pakistan in the plenary. So late Friday night, to keep things moving, they agreed to hold an extra session sometime before the parties' annual meeting in Dubai in November, where one hopes they put enough pressure on Pakistan to clear the last obstacle to starting real talks.</p>
<p>Counting the real engagement in the plenary, this is progress. But barely.</p>
<p><b>Breakthrough Requires High-Level Leadership</b></p>
<p>There is still a chance to reach an HFC agreement when the parties meet in Dubai in November, but two things are needed.</p>
<p>First, making the necessary breakthrough will require higher level leaders to grab the reins and take the initiative in the three months remaining before Dubai. Negotiators may get lost in the weeds, but high-level leaders can see that an HFC deal under the Montreal Protocol would be a big contribution to the larger climate agreement hoped for in Paris in December. It can happen if leaders and key ministers make it happen.</p>
<p><b>NRDC Launches IMPACT Analytical Tool </b></p>
<p>At the same time, the weeds are important. Reaching an agreement will require boiling down the four amendment proposals into one. It may simplifying and perhaps biting off a first step now (such as a freeze) and coming back to further steps later.</p>
<p>We heard great interest in Paris this week in understanding and comparing the proposals - especially understanding how their baselines, initial steps, and longer-term controls schedules compare, and how much HFC production and consumption they actually would allow.</p>
<p>To help meet this need, NRDC has developed an Excel-based analytical tool - called the "Interactive Montreal Protocol Amendment Comparison Tool" (IMPACT) - that translates the baseline formulas and reduction schedules of each proposal into CO2 equivalent amounts of HFC consumption. We will make IMPACT available to any party or observer. You can use this tool to assess the HFC consumption of the four proposals for developed and developing countries as a whole. You can compare any two proposals, and you can customize any proposal - or write a new one of your own.</p>
<p><a href="http://switchboard.nrdc.org/blogs/ddoniger/assets_c/2015/07/IMPACT%20blog%20screenshot-20731.html" onclick="window.open('http://switchboard.nrdc.org/blogs/ddoniger/assets_c/2015/07/IMPACT%20blog%20screenshot-20731.html','popup','width=1025,height=503,scrollbars=yes,resizable=no,toolbar=no,directories=no,location=no,menubar=no,status=no,left=0,top=0'); return false"><img src="http://switchboard.nrdc.org/blogs/ddoniger/assets_c/2015/07/IMPACT%20blog%20screenshot-thumb-500xauto-20731.png" width="500" height="244" alt="IMPACT blog screenshot.PNG" class="mt-image-none" /></a></p>
<p>We will soon add the ability to assess HFC consumption by smaller subgroups of parties and certain individual parties. IMPACT will also allow a country to input its own national data and projections and see how much national HFC consumption would be allowed under each proposal. <span style="line-height: 1.62;">We will also add the capability to assess how much HFC consumption is </span><i style="line-height: 1.62;">avoided</i><span style="line-height: 1.62;">, through 2050.</span></p>
<p>Using the IMPACT tool, one can quickly see that some differences among the proposals matter a lot, and some less so. These insights will help negotiators - and high-level ministers - make informed decisions and focus on the features that are important for climate protection.</p>
<p>If you would like a copy of the IMPACT tool, you can contact my NRDC colleague Alex Hillbrand, IMPACT's developer, at <a href="mailto:ahillbrand@nrdc.org">ahillbrand@nrdc.org</a>.</p>
<p>We hope IMPACT will make an impact towards a deal in Dubai.</p>
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</div><img src="http://feeds.feedburner.com/~r/switchboard_ddoniger/~4/V7im7WPu4kQ" height="1" width="1" alt=""/>http://switchboard.nrdc.org/blogs/ddoniger/countries_make_slow_progress_o.htmlA Bit of Good News for the Ozone Layertag:switchboard.nrdc.org,2015:/blogs/ddoniger//38.187682015-07-23T11:03:49Z2015-07-28T18:39:44ZDavid Doniger
<p>David Doniger, Director, Climate and Clean Air Program, Washington, D.C.</p>
<p><span style="line-height: 1.62;">The Parties to the Montreal Protocol are meeting in Paris again this week. The big item on their agenda is the effort to curb the super-greenhouse gases called hydrofluorocarbons (HFCs). I'll report tomorrow on their progress on HFCs.</span></p>
<p>But let's take a moment to note a milestone on curbing another chemical controlled under that excellent treaty.</p>
<p>This year marks the end of large exemptions for a dangerous ozone-destroying chemical called methyl bromide - an agricultural chemical then used mainly to kill soil pests in strawberry, tomato, and other vegetable-growing regions.</p>
<p>The Montreal Protocol began curbing the production and use of methyl bromide more than 20 years ago. Fruit and vegetable growers in Europe, Australia, and many other places rapidly reduced their dependence on methyl bromide - in most cases totally phasing out this chemical's use.</p>
<p>The one big exception, unfortunately, was the United States. To its credit, in 1997 the U.S. spearheaded agreement to phase out methyl bromide by 2005, with exemptions available for "critical uses." When agreed in 1997, governments and observers both expected these critical uses to be pinhole exceptions for small niche uses that might need a couple of extra years to be replaced.</p>
<p>In 2003, however, the Bush administration, catering to a handful of chemical companies and a small agricultural lobby, <a href="http://switchboard.nrdc.org/blogs/ddoniger/yesterday_i_told_the_story.html">attempted to "break out" of the methyl bromide phase-out</a>, by proposing massive critical use exemptions - originally covering more than 60 percent of the United States' total methyl bromide use.</p>
<p>NRDC, then the only environmental watchdog on methyl bromide in the Montreal Protocol process, <a href="http://www.nrdc.org/media/pressreleases/040304.asp">blew the whistle</a> on the Bush Administration's break-out proposal. We called it "<a href="http://switchboard.nrdc.org/blogs/ddoniger/so_what_about_the_ozone_layer.html">the black mark on U.S. leadership in protecting the ozone layer</a>."</p>
<p>We dug up obscure <a href="http://www.nrdc.org/media/pressreleases/040803.asp">U.S. government data</a> showing that three companies held huge stockpiles of methyl bromide, more than adequate to meet growers' needs without any new production. These stockpiles, it turned out, were dangerously stored in railroad tank cars on sitting on sidings in California and Florida.</p>
<p>The massive exemption request astounded other countries, most of which were well on the way to replacing methyl bromide. Eventually, the U.S. settled for exemptions covering 1/3<sup>rd</sup> of its total use - including for such "critical uses" as tobacco seedlings and golf course turf grass. For the remainder of the Bush presidency, the U.S. came back year after year for more exemptions, each time accounting for about 90 percent of all exemptions granted.</p>
<p>That began to change under the Obama Administration. Recognizing the availability of alternatives proven in other countries, and in fact the progress made by leading American growers, the U.S. rapidly ramped down its methyl bromide exemption requests.</p>
<p>And here is the milestone. This year the U.S. is seeking <span style="text-decoration: underline;">no</span> exemptions at all for strawberries or other crops in 2016 and beyond.</p>
<p>We're not completely done with methyl bromide. The U.S. is still making a three-ton exemption request for use on a curious cured pork product. A few developing countries are also seeking small exemptions. And we still need to reduce methyl bromide use for "quarantine" purposes - rules to keep pests from traveling between countries on crop shipments or on wooden pallets and packages. The Montreal Protocol's technical advisors say there are currently alternatives for 40 percent of quarantine uses of methyl bromide.</p>
<p>But let's savor the moment. Methyl bromide use is more than 90 percent gone for the agricultural uses that dominated 20 years ago. And the ozone layer is healing faster as a result.</p>
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</div><img src="http://feeds.feedburner.com/~r/switchboard_ddoniger/~4/ZjWpIUR--C8" height="1" width="1" alt=""/>http://switchboard.nrdc.org/blogs/ddoniger/a_bit_of_good_news_for_the_ozo.htmlClean Power Plan Foes Batting 0 for 6 in the Courtstag:switchboard.nrdc.org,2015:/blogs/ddoniger//38.187622015-07-22T09:18:47Z2015-07-23T09:28:22ZDavid Doniger
<p>David Doniger, Director, Climate and Clean Air Program, Washington, D.C.</p>
<p><span style="line-height: 1.62;">It is becoming increasingly clear that foes of the Clean Power Plan have no more regard for our judicial system than for the health and welfare of American families. Since 2012, they have clogged the federal courts with six frivolous lawsuits against the Environmental Protection Agency's proposals to clean up the nation's power plants--the largest source of the carbon pollution that drives dangerous climate change. The latest suit, brought by the attorney general of Oklahoma, was <a href="http://switchboard.nrdc.org/blogs/ddoniger/Oklahoma%20CPP%20decision.pdf">tossed out of court</a> last Friday. The polluters and their allies are now batting 0 for 6. </span></p>
<p>These suits ran afoul of a fundamental principle of administrative law: federal courts may only review final agency regulations, not proposals. It is not until an agency takes "final action" that any requirements or obligations take effect. And it is only when an agency takes a "final action" that someone can challenge it in the federal courts. In short, the courts don't get involved until the agency has finished its job.</p>
<p>Despite these clear principles of administrative law, the polluters and their allies have repeatedly tried to get the courts to weigh in on proposed power plant carbon pollution standards that EPA is still working on. In <em>Las Brisas Energy Center, LLC v. EPA</em> in 2012, power companies prematurely challenged EPA's proposed carbon standards for new plants. The Nebraska Attorney General tried the same thing in <em>Nebraska v. EPA</em> in 2014. And in three more cases filed last year (<em>In re: Murray Energy</em>,<em> West Virginia v. EPA</em>, and<em> Murray Energy v. EPA</em>), polluters and their state allies challenged the proposed Clean Power Plan for existing plants.</p>
<p>The courts dismissed all five of these cases as premature for lack of any final agency action to review. In addition, the courts dismissed cases brought outside Washington for a second reason: under the Clean Air Act the U.S. Court of Appeals for the District of Columbia Circuit has exclusive jurisdiction to hear all challenges to final EPA standards of national scope, including these power plant rules, albeit only when they are final.</p>
<p>Undeterred by this string of losses, the polluters and their allies tried to go after the Clean Power Plan again. On July 1<sup>st</sup>, Oklahoma Attorney General Scot Pruitt - represented by a <a href="http://www.bakerlaw.com/Environmental%20-%20experience">private law firm</a> with close ties to the energy industry and a leading conservative lawyer in unsuccessful challenges to Obamacare - brought lawsuit number six in the District Court in Tulsa. (For more on the "unprecedented, secretive alliance" between Oklahoma's Attorney General and fossil fuel interests, see this <a href="http://www.nytimes.com/2014/12/07/us/politics/energy-firms-in-secretive-alliance-with-attorneys-general.html?_r=2"><i>New York Times</i></a> article). Repeating many of the same losing arguments advanced in the D.C. Circuit, Oklahoma asked the Tulsa district court to step in and stop the Clean Power Plan rulemaking.</p>
<p>Judge Eagen, appointed by George W. Bush in 2001, wasn't having it. She dismissed the case in just 18 days, ruling that Oklahoma's attack on the Clean Power Plan proposal failed for lack of any final agency action. In addition, any challenge to the final plan, the judge wrote, "must be decided by the court with exclusive jurisdiction over these matters, and that court is the D.C. Circuit." Finally, she found Oklahoma's claims "exaggerated." Despite all the hoopla, Oklahoma failed to show that the Plan conflicted with any "clear and mandatory" limit on EPA's authority.</p>
<p><em>Update July 23: Yesterday the Oklahoma Attorney General appealed his latest loss to the Tenth Circuit Court of Appeals. Apparently he thinks the opportunity for another press release is worth extending his losing streak to 0 for 7!</em></p>
<p>There are two important takeaways from the Oklahoma case. First, the polluter coalition wasn't joking when it said it planned to use litigation to "<a href="http://www.ago.wv.gov/pressroom/2014/Pages/Attorney-General-Morrisey-Pledges-To-Keep-Fighting-For-Coal-Miners,-Their-Families-At-Rally-To-Support-American-Energy.aspx">gum up the works</a>." This pattern of abusive litigation is part of a calculated political strategy to harass and oppose any effort to clean up the power plant pollution driving dangerous climate change. We should expect more such frivolous lawsuits. But t<span style="line-height: 28.8000011444092px;">his strategy will fail.</span></p>
<p><span style="line-height: 1.62;">Second, Clean Power Plan foes are trying to make far-fetched statutory and constitutional arguments seem weighty simply by repeating them as often and as loudly as possible. But the Supreme Court has already ruled that the EPA has the authority and responsibility to address dangerous carbon pollution from power plants. The Oklahoma Attorney-General and his big private law firm trotted out all of these arguments in Tulsa, but like the judges in the other five cases, Judge Eagen wasn't persuaded. Their inability to persuade the courts that the Clean Power Plan violates any "clear and mandatory" limits suggests that their attacks will keep falling flat.</span></p>
<p><em>This post co-authored with David Baake.</em></p>
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</div><img src="http://feeds.feedburner.com/~r/switchboard_ddoniger/~4/IWZGCSk3rko" height="1" width="1" alt=""/>http://switchboard.nrdc.org/blogs/ddoniger/clean_power_plan_foes_batting_.htmlSteady As She Goes: Lessons for the Clean Power Plan from the Supreme Court's Mercury and Healthcare Decisionstag:switchboard.nrdc.org,2015:/blogs/ddoniger//38.186952015-07-06T17:33:27Z2015-07-20T10:19:48ZDavid Doniger
<p>David Doniger, Director, Climate and Clean Air Program, Washington, D.C.</p>
<p><span style="line-height: 1.62;">Everyone with a stake in President Obama's </span><a href="http://www2.epa.gov/carbon-pollution-standards/clean-power-plan-proposed-rule" style="line-height: 1.62;">Clean Power Plan</a><span style="line-height: 1.62;"> waited anxiously last month for the Supreme Court's decisions in the mercury and healthcare cases, </span><a href="http://www.supremecourt.gov/opinions/14pdf/14-46_10n2.pdf" style="line-height: 1.62;"><i>Michigan v. EPA</i></a><i style="line-height: 1.62;"> </i><span style="line-height: 1.62;">and </span><a href="http://www.supremecourt.gov/opinions/14pdf/14-114_qol1.pdf" style="line-height: 1.62;"><i>King v. Burwell</i></a><span style="line-height: 1.62;">. What would those cases tell us about prospects for EPA's carbon pollution standards?</span></p>
<p>The two decisions, taken together, tell us the Clean Power Plan's prospects are, in fact, pretty good. Here are three reasons why:</p>
<p><b>1. The mercury setback is temporary, and won't interfere with the Clean Power Plan.</b></p>
<p>From the immediate press coverage of the <i>Michigan </i>case, one could be forgiven for thinking the Supreme Court had "thrown out," "struck down," or "blocked" the mercury and air toxics standard (MATS), and put EPA's forthcoming carbon pollution standards into grave doubt. Republican Congressional leaders claimed vindication and coal companies' basement-level stock prices ticked upwards.</p>
<p>But the <i>Michigan </i>decision is quite narrow, and the MATS rule can be easily fixed. To be sure, on remand EPA will have to make a new threshold determination whether it is "appropriate" to regulate mercury from power plants, this time considering compliance costs as well as health benefits. But the Supreme Court did not vacate or otherwise suspend the standards. They remain in effect. And though EPA did not rely on it in its original decision, the agency has already conducted a thorough <a href="http://www.epa.gov/ttnecas1/regdata/RIAs/matsriafinal.pdf">cost-benefit analysis</a> (to meet OMB regulatory review requirements) that shows health benefits of $37-90 billion per year -- many times the $9.6 billion estimated costs.</p>
<p>Those health benefits include up to 11,000 lives saved and hundreds of thousands of illnesses avoided each year due to reductions in fine particles, sulfur dioxide, and oxides of nitrogen wrought by the same control measures that curb mercury and the other toxic air pollutants. Industry litigants argued vociferously that EPA should not be allowed to consider those "co-benefits," but Justice Scalia's majority opinion - perhaps showing the influence of Justice Kennedy - pointedly leaves EPA broad leeway to decide how to consider costs and benefits on remand: "It will be up to the Agency to decide (as always, within the limits of reasonable interpretation) how to account for cost."</p>
<p>(Industry's plea to ignore the fine particle, SO2 and NOx co-benefits from mercury controls seems particularly hypocritical. They have always argued that EPA must consider the <i>mercury</i> reduction co-benefits from other SO2 and NOx controls when deciding whether to set mercury standards.)</p>
<p>Because EPA already has analysis in hand showing huge benefits over costs, the agency should have little trouble quickly fixing the MATS rule - well within President Obama's term.</p>
<p>So it's no surprise that by Tuesday, coal stocks had already given up their Monday gains.</p>
<p><i>Michigan's </i>implications for the future are even more limited by the fact that the provision at issue - the "appropriate and necessary" clause in section 112 of the Clean Air Act - applies <i>only </i>to the MATS decision<i>. </i>It does not apply to any other hazardous air pollutant standards under section 112 or to carbon pollution standards under section 111. (Because it's a completely "one-off" provision, it's hard to understand why the Court bothered to take the case.)</p>
<p>In any case, there's never been any doubt that EPA must consider costs when setting carbon pollution standards under section 111, and EPA has done so from the start of its regulatory process. The agency published an <a href="http://www2.epa.gov/sites/production/files/2014-06/documents/20140602ria-clean-power-plan.pdf">extensive analysis</a> last year showing that the proposed carbon standards will have huge health and climate protection benefits many times their cost - benefits of $55-93 billion per year in 2030 compared to costs of $7.3-8.8 billion. This is a benefit-cost proposition even more favorable than for the MATS standard. The final carbon standards will undoubtedly include an updated analysis -- one that will surely meet the broad parameters for reasonable assessment of costs that the Supreme Court set forth in <i>Michigan. </i></p>
<p><b>2. The MATS rule was an ordinary <i>Chevron</i> case.</b></p>
<p>The most important thing to glean from the <em>Michigan </em>decision concerns a legal question: what standard of review would the Court apply to determine whether EPA had acted within its legal authority?</p>
<p>For more than 30 years, the courts have followed a two-part test established in <a href="https://www.law.cornell.edu/supremecourt/text/467/837#writing-USSC_CR_0467_0837_ZO"><i>Chevron v. NRDC</i></a> -- a case that I argued (and lost!) in the Supreme Court. If a statute is unambiguous, courts will enforce its clear meaning. But if a statute is ambiguous -<em> i.e.</em>, if it has two or more reasonable interpretations - <span style="line-height: 1.62;">courts must defer to the one chosen by the agency charged with the law's implementation. When executive branch agencies confront implementation questions that statutory terms don't clearly resolve, </span><i style="line-height: 1.62;">Chevron</i><span style="line-height: 1.62;"> deference allows the agency, rather than the courts, to "fill the gap left open by Congress" by choosing among the reasonable interpretations. As Justice Ginsburg wrote in </span><a href="https://www.law.cornell.edu/supremecourt/text/12-1182#writing-12-1182_OPINION_3" style="line-height: 1.62;"><i>EPA v. EME Homer City Generation</i></a><span style="line-height: 1.62;">, a key case decided just last year, </span><i style="line-height: 1.62;">Chevron</i><span style="line-height: 1.62;"> deference allows expert agencies vital leeway to make policy choices necessary to resolve "thorny" implementation problems in statutes Congress has charged them to administer.</span></p>
<p><i>King v. Burwell</i>, handed down the week before the MATS decision, raised a question mark, however. The big news from <i>Burwell, </i>as everyone knows, is that the Court upheld the availability of insurance subsidies under the Affordable Care Act to Americans who purchase health insurance on both state and federal exchanges. But the pathway to that decision raised new questions about <i>Chevron </i>deference.</p>
<p>Chief Justice Roberts ruled that a key clause of the healthcare law was ambiguous, but he refused to apply <i>Chevron</i>. Instead of determining if the agency's interpretation was reasonable and then deferring, the Court took on the task of resolving the ambiguity itself.</p>
<p><span style="line-height: 1.62;">The premise of </span><i style="line-height: 1.62;">Chevron</i><span style="line-height: 1.62;">, Roberts wrote, is that a statutory ambiguity constitutes "an implicit delegation from Congress to the agency to fill in the statutory gaps." "In extraordinary cases, however, there may be reason to hesitate before concluding that Congress has intended such an implicit delegation." (These are quotations from an earlier case, </span><a href="https://www.law.cornell.edu/supct/html/98-1152.ZO.html" style="line-height: 1.62;"><i>FDA v. Brown &amp; Williamson</i></a><span style="line-height: 1.62;">, holding that the Food and Drug Act did not give the FDA leeway to control tobacco nicotine.)</span><i style="line-height: 1.62;"> </i><span style="line-height: 1.62;">Roberts found the Obamacare subsidies to be one of those "extraordinary" cases, mainly because of the magnitude of the economic stakes - the subsidies "involv[e] billions of dollars in spending each year and affect[] the price of health insur­ance for millions of people," and were one of the "key reforms" without which insurance markets would likely fail altogether. Roberts also found deference inappropriate because the healthcare subsidy regulation was issued by the IRS - an agency without healthcare expertise - not Health and Human Services. Because of these "extraordinary" factors, the Court itself decided the meaning of the ambiguous clause at issue in the case, without deference to the executive branch. </span></p>
<p>While most people quite reasonably focused on <i>Burwell's </i>momentous consequences for Obamacare, the decision left a giant question hanging in the air: Would the Court decide the then still-pending MATS case under the new <i>Burwell</i> test for "extraordinary" cases, or under the traditional <i>Chevron</i> test for "ordinary" cases?</p>
<p>Answers to questions this big rarely come so quickly. But last Monday we learned that <i>Michigan v. EPA</i> was just an ordinary <i>Chevron</i> case. To be sure, Justice Scalia found the Clean Air Act clause at issue in that case to be ambiguous and EPA's interpretation to be unreasonable. But his opinion for the majority stayed squarely in the <i>Chevron</i> frame. As explained above, the Court ordered EPA to redo its determination whether mercury standards are "appropriate," this time considering costs. But in perfect harmony with <i>Chevron</i>, the opinion made clear that EPA, as the expert agency charged with carrying out the Clean Air Act, has a lot of leeway on <i>how</i> to consider costs. As already noted, Scalia wrote: "It will be up to the Agency to decide (as always, within the limits of reasonable interpretation) how to account for cost."</p>
<p>Despite the MATS rule's $9.6 billion per year price tag, Scalia found no reason to move it to the "extraordinary" category. Only Justice Thomas argued, in a concurring opinion, for limiting <i>Chevron </i>deference, and he got no takers.</p>
<p>That MATS is an ordinary <i>Chevron </i>case has very important implications for the Clean Power Plan. Its foes regularly claim that the Clean Power Plan means the ruin of the American economy and the end of life as we know it. But as the figures quoted above show, the estimated cost of the proposed Plan is <i>less</i> than the cost of the MATS rule, and its adoption poses no economic risk even close to the demise of health insurance markets threatened in <i>Burwell</i>. That makes it very likely that courts reviewing the Clean Power Plan will accord EPA <i>Chevron</i> deference just as the Supreme Court did in <i>Michigan</i>, and will not take over the interpretive lead as Chief Justice Roberts did in <i>Burwell</i>.</p>
<p>As the <i>Michigan</i> decision shows, EPA can still lose under <i>Chevron</i>. But if EPA presents a clear and persuasive argument for its statutory interpretations in the final Clean Power Plan rule, the agency will prevail.</p>
<p><b>3. The <i>Burwell </i>Court didn't buy a "plain meaning" challenge that would have knocked the sense out of the Affordable Care Act as a whole.</b></p>
<p>In <i>King v. Burwell</i>, opponents tried to bring down Obamacare with a "literal" reading of a single clause. They lost because the Court decided that reading went against the obvious intentions of the healthcare law considered as a whole. The failure of the <i>Burwell </i>challenge is good news for the Clean Power Plan.</p>
<p>The Affordable Care Act gives states the option to establish health insurance exchanges, and it provides insurance subsidies to qualified lower-income people. If a state declines to set up an exchange, the Act directs Health and Human Services to establish a federal exchange to serve that state's citizens. The challengers in <i>Burwell</i> sought to exploit a drafting glitch - a clause providing subsidies through exchanges "established by the state" - to block subsidies to citizens in states served by federal exchanges. Reading the Act as a whole, the Supreme Court found clear evidence that the availability of insurance subsidies was crucial to achieving the law's insurance reform objectives. The Court rejected the challengers' supposed "plain meaning" because denying subsidies to insurance purchasers on federal exchanges would have pushed insurance markets into the "death spiral" that Congress intended to avoid.</p>
<p>Clean Power Plan foes claim to have found a "plain meaning" argument of their own. They claim that the Clean Air Act bars EPA from regulating any air pollutant under section 111(d) if the source of that pollution is already "regulated under section 112" - even for a wholly different pollutant. Thus, they assert that Congress intended to bar curbs on power plants' carbon pollution under section 111(d) because EPA has already regulated their mercury pollution under section 112. (Never mind that the same parties in <i>Michigan </i>are also trying to void the MATS rule.)</p>
<p>For a host of reasons, the supposed "plain meaning" argument advanced against the Clean Power Plan is even less plausible than the one put forward in <i>Burwell</i>. As we've shown <a href="http://switchboard.nrdc.org/blogs/ddoniger/grasping_at_straws_why_a_legis.html">here</a> and <a href="http://switchboard.nrdc.org/blogs/ddoniger/peabody_energy_hires_a_well-kn.html">here</a>, Congress actually adopted <i>two</i> versions of the Clean Air Act clause in question - one from the Senate, and one from the House - and neither version (let alone both) shows that Congress intended to bar EPA from regulating one dangerous power plant pollutant (carbon dioxide) because the agency has previously regulated another (mercury). To the contrary, the Senate version of the clause is crystal clear that <i>both</i> pollutants must be curbed, while the House version read in context plainly bars regulating a source's emissions of a pollutant under section 111(d) only if its emissions of <i>the same pollutant</i> are already curbed under section 112. Power plants' carbon emissions are not regulated under section 112, and so there's no barrier to regulating them under section 111(d).</p>
<p>In any case, it does not help Clean Power Plan's foes that the <i>Burwell </i>Court refused to mechanically put a single clause's supposed plain meaning above the entire statutory context. Rather, the Court looked to the purpose of the provisions, and the consequences of buying the challengers' argument. "A fair reading of legislation," the Court wrote, "demands a fair understanding of the legislative plan."</p>
<p>Here, the Clean Power Plan challengers' argument would open a gap in the Clean Air Act's legislative plan directly at odds with Congress's intentions. Congress intended that EPA have the legal tools needed to curb all kinds of dangerous air pollution. Congress adopted section 111(d) precisely to avoid any gap in EPA's authority to curb dangerous air pollutants from the nation's industrial sources.</p>
<p><span style="line-height: 1.62;"> * * *</span></p>
<p><span style="line-height: 1.62;">So, what have we learned from the Supreme Court decisions in</span><i style="line-height: 1.62;"> Michigan </i><span style="line-height: 1.62;">and </span><i style="line-height: 1.62;">Burwell</i><span style="line-height: 1.62;">? Look for the MATS rule to get fixed quickly. And look for the Clean Power Plan to stay on course.</span></p>
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</div><img src="http://feeds.feedburner.com/~r/switchboard_ddoniger/~4/KJYxPWyNfC0" height="1" width="1" alt=""/>http://switchboard.nrdc.org/blogs/ddoniger/steady_as_she_goes_lessons_for.htmlIt's a SNAP: EPA Cuts HFC Super-Pollutants to Curb Dangerous Climate Changetag:switchboard.nrdc.org,2015:/blogs/ddoniger//38.186912015-07-02T21:51:31Z2015-07-03T15:59:13ZDavid Doniger
<p>David Doniger, Director, Climate and Clean Air Program, Washington, D.C.</p>
<p><span style="line-height: 1.62;">The Environmental Protection Agency today </span><a href="http://yosemite.epa.gov/opa/admpress.nsf/21b8983ffa5d0e4685257dd4006b85e2/b1c42a422851c64685257e760057d08f!OpenDocument" style="line-height: 1.62;">announced</a><span style="line-height: 1.62;"> deadlines to end certain uses of hydrofluorocarbons (HFCs) - powerful heat-trapping gases that significantly contribute to climate change - because safer, climate-friendlier alternatives are now available.</span></p>
<p>The EPA's <a href="http://www.epa.gov/ozone/snap/download/SAN_5750_SNAP_Status_Change_Rule_FINAL_RULE_signature_version-signed-7-2-2015.pdf">new rules</a> affect HFCs used in motor vehicle air conditioning, retail food refrigeration and vending machines, aerosols, and foam blowing. The agency proposed the standards a year ago and finalized them today.</p>
<p>The new rules, issued under the Clean Air Act's <a href="http://www.epa.gov/ozone/snap/regulations.html">"SNAP" program</a> (SNAP stands for "Significant New Alternatives Policy") are a major step forward under President Obama's <a href="https://www.whitehouse.gov/sites/default/files/image/president27sclimateactionplan.pdf">Climate Action Plan</a>. They will help the U.S. meet its carbon pollution reduction target, put forward for the climate treaty negotiations concluding this December in Paris. The new rules will also boost prospects for agreement on phasing down HFCs worldwide under a separate treaty, the Montreal Protocol, and this would be a major contribution to the Paris climate deal.</p>
<p>Today's action targeted some of the largest and leakiest HFC applications, including motor vehicle air conditioners, supermarket systems, aerosol propellants, and foam insulation. HFC-134a will be banned in new motor vehicles starting in 2020 (model year 2021) and replaced by a coolant with less than one percent the heat-trapping potential (HFO-1234yf). In supermarket systems--which leak faster than any other refrigeration application--R-404A, R-507A and other harmful HFC blends will be banned in new systems between 2016 and 2020, depending on the specific application.</p>
<p>Between 2016 and 2018 the new rules will end the use of aerosol propellants HFC-125, HFC-134a, and HFC-227ea -- all potent HFCs with climate-friendlier alternatives. HFC-134a, HFC-245fa, HFC-365mfc and others agents will be banned as blowing agents for seat cushions, insulating foams, and other foam applications between 2017 and 2021.</p>
<p>In 2025, EPA estimates HFC emissions will be cut by the equivalent of 54-64 million metric tons of carbon dioxide - making an important contribution to meeting the U.S. climate target for the Paris treaty negotiations. HFC emission reductions will grow to 78-101 million metric tons CO2-equivalent by 2030.</p>
<p>In parallel, EPA approved several climate-friendlier refrigerants for use in commercial refrigeration equipment and space-cooling chillers. These compounds have less than half the heat-trapping climate impact of the HFCs they will replace. The new refrigerants include R-448A and R-449A, primarily for supermarket systems, and R-513A and R-450A, primarily for chillers and vending machines. This additional step clears the way for selling state-of-the-art building chillers. It also enables the retrofit of existing supermarket systems with climate-friendlier coolants, bringing even larger benefits than requirements applicable to new systems alone.</p>
<p>Today's action is a good start on eliminating dangerous HFCs. But many other uses of HFCs remain, and the job isn't done. NRDC will keep working to replace them with safer alternatives under the Clean Air Act and through the Montreal Protocol.</p>
<p><i>This post co-authored with Alex Hillbrand, NRDC's HFC technical analyst </i></p>
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</div><img src="http://feeds.feedburner.com/~r/switchboard_ddoniger/~4/3_luiplw2x0" height="1" width="1" alt=""/>http://switchboard.nrdc.org/blogs/ddoniger/its_a_snap_epa_cuts_hfc_super-.htmlProgress on Phasing Down HFCs as Countries Build Momentum Toward a Deal - Summary of Amendment Proposals tag:switchboard.nrdc.org,2015:/blogs/ddoniger//38.186602015-06-27T03:11:51Z2015-07-28T00:27:13ZDavid Doniger
<p>David Doniger, Director, Climate and Clean Air Program, Washington, D.C.</p>
<p><i>Co-authored by Alexander Hillbrand (NRDC Analyst) and Morgan Capilla (NRDC Stanback Fellow) </i></p>
<p>The global effort to phase down powerful heat-trapping hydrofluorocarbons (HFCs) is gaining speed as several nations recently put forth <a href="http://switchboard.nrdc.org/blogs/ddoniger/deal_on_hfc_super-pollutants_i.html">detailed plans to curb HFC use</a>. Negotiators at the upcoming Open-Ended Working Group (OEWG) in Paris next month will weigh in on updated amendment proposals from North America, India, the European Union, and the Island States.</p>
<p>With support from China, Brazil, the African Group, and nearly all of Latin America and Asia, momentum is building toward reaching an agreement to phase down these super pollutants, which have up to 10,000 times the impact of CO<sub>2 </sub>pound-for-pound.</p>
<p><a href="http://switchboard.nrdc.org/blogs/ddoniger/MP%20Amendment%20Chart%20June%202015.pdf" onclick="window.open('http://switchboard.nrdc.org/blogs/ddoniger/assets_c/2015/06/chartthumb-20361.html','popup','width=416,height=348,scrollbars=yes,resizable=no,toolbar=no,directories=no,location=no,menubar=no,status=no,left=0,top=0'); return false"><img src="http://switchboard.nrdc.org/blogs/ddoniger/assets_c/2015/06/chartthumb-thumb-250xauto-20361.png" alt="chartthumb.png" class="mt-image-right" style="float: right; margin: 0 0 20px 20px;" height="208" width="250" /></a>A summary chart by NRDC, Council on Energy, Environment and Water (CEEW), and Institute for Governance and Sustainable Development (IGSD) with inputs from experts, such as Steve Seidel and others, highlights the key features of each Montreal Protocol amendment proposal and the African Group's non-paper draft submission. Click on the thumbnail at right for the summary chart.</p>
<p>Key features of all amendment proposals, as summarized in the chart are:</p>
<ul>
<li><i>Substances:</i> All amendment proposals list HFC substances and divide them into groups.</li>
<li><i>Baselines:</i> All amendment proposals define a separate baseline for developed and developing countries - the former relative to past years and the latter relative to past or future years.</li>
<li><i>Reduction Schedules: </i>All amendment proposals implement controls as percentage reduction steps below the baseline, separate for developed and developing countries. Schedules for developing countries offer a "grace period" delay beyond the timeframe for developed countries.</li>
<li><i>Financing:</i> All amendment proposals require degrees of transitional cost support for developing countries from the Multilateral Fund.</li>
<li><i>Exceptional Provisions: </i>Several amendment proposals address the possibility that HFC alternatives may not be promptly available in certain applications and that secondary transitions may be necessary.</li>
</ul>
<p>Provided that opposition from Saudi Arabia and a few other Gulf countries doesn't stall negotiations, the upcoming meeting in Paris next month holds promise of progress and a "contact group" being formed to hammer out specifics of an agreement. Making such headway could lead to a signed agreement in Dubai in November and historic action against these dangerous pollutants.</p>
<p align="center"><a href="http://conf.montreal-protocol.org/meeting/oewg/oewg-36/pubs/English/MP%20Amendment%20Chart%20Rev%20F.pdf"><b>Summary Chart of 2015 Montreal Protocol Amendment Proposals</b></a></p>
<p><i>Shannon Dilley and Bhaskar Deol also contributed to the post.</i></p>
<p></p>
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</div><img src="http://feeds.feedburner.com/~r/switchboard_ddoniger/~4/G2IgXXVuOBg" height="1" width="1" alt=""/>http://switchboard.nrdc.org/blogs/ddoniger/progress_on_phasing_down_hfcs_.htmlClean Power Plan On Track: Court Dumps Bid to Block EPA from Curbing Power Plant Carbon Pollutiontag:switchboard.nrdc.org,2015:/blogs/ddoniger//38.185632015-06-09T16:59:36Z2015-06-09T17:05:50ZDavid Doniger
<p>David Doniger, Director, Climate and Clean Air Program, Washington, D.C.</p>
<p><span style="line-height: 1.62;">The federal court of appeals in Washington </span><a href="http://www.cadc.uscourts.gov/internet/opinions.nsf/61AA9C6759829C8B85257E5F005110D8/$file/14-1112.pdf" style="line-height: 1.62;">rejected</a><span style="line-height: 1.62;"> a bid to snuff out the Environmental Protection Agency's </span><a href="http://www2.epa.gov/carbon-pollution-standards/clean-power-plan-proposed-rule" style="line-height: 1.62;">Clean Power Plan</a><span style="line-height: 1.62;">, the Obama administration's historic plan to put the first-ever limits on dangerous carbon pollution from the nation's 1500 coal- and gas-fired power plants. The court today dismissed attempts by coal companies and conservative state attorneys-general to block EPA's </span><i style="line-height: 1.62;">proposed</i><span style="line-height: 1.62;"> standards even before the final plan is issued. </span></p>
<p>Today's decision keeps the Clean Power Plan on track. The proposed plan, issued under the Clean Air Act last June, would cut carbon pollution from existing power plants by some 26 percent in 2020 and 30 percent in 2030, from 2005 levels. Millions of Americans voiced their support in public comments last fall. EPA is expected to issue final state-by-state targets this summer. Each state will then have the first chance to write a plan requiring its power plants to meet those emission limits. If a state can't or won't submit a satisfactory plan, then the law requires EPA to curb those plants' emissions directly through a federal plan.</p>
<p>The oral argument in April <a href="http://switchboard.nrdc.org/blogs/ddoniger/despite_hoopla_court_challenge.html">did not go well</a> for the challengers, and so today's decision comes as no surprise. The decidedly conservative three judge panel hit them with hard questions about why the court should intervene before the final standards are even issued.</p>
<p>Writing for the court today, Judge Brett Kavanaugh said the challengers "want us to do something that they candidly acknowledge we have never done before: review the legality of a <i>proposed</i> rule. ... We do not have authority to review proposed agency rules."</p>
<p>Clean Power Plan opponents, the court noted, will get their shot when EPA issues the final standards this summer. But those challenges are also likely to fail.</p>
<p>Take it as a sign that the Supreme Court has <i>three times</i> <i>already</i> <a href="http://switchboard.nrdc.org/blogs/ddoniger/supreme_court_backs_carbon_pol.html">upheld EPA's authority and responsibility</a> under the Clean Air Act to curb the carbon pollution driving climate change - including the specific legal provision EPA is using now to set carbon limits for existing power plants.</p>
<p>Take it as a sign that the D.C. Circuit Court of Appeals has upheld EPA's finding that <a href="http://switchboard.nrdc.org/blogs/ddoniger/climate_smack-down_court_uphol.html">carbon pollution endangers our health and welfare</a>, and EPA's historic emission standards for cars and trucks.</p>
<p>And take it as a sign that the D.C. Circuit Court of Appeals just last week <a href="http://www.cadc.uscourts.gov/internet/opinions.nsf/74C882991045080985257E580051699C/$file/12-1309-1555205.pdf">rejected one of the far-fetched constitutional claims</a> brought by Peabody Coal's hired gun Prof. Larry Tribe - that the Clean Air Act unconstitutionally "commandeers" state governments into the fight against air pollution. Nonsense, the court said, noting repeated Supreme Court decisions upholding federal statutes that give states the first option to act but provide for direct federal regulation if the state does not do the job.</p>
<p>So the Clean Power Plan continues moving forward. Climate change is a clear and present danger that we must tackle now. Our opponents will keep attacking, but we'll be in court to defend the Clean Power Plan. And we'll keep pressing for the strongest carbon pollution standards to combat climate change.</p>
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</div><img src="http://feeds.feedburner.com/~r/switchboard_ddoniger/~4/7E4l4VwAgOU" height="1" width="1" alt=""/>http://switchboard.nrdc.org/blogs/ddoniger/clean_power_plan_on_track_cour.htmlClean Power Plan on Solid Legal Groundtag:switchboard.nrdc.org,2015:/blogs/ddoniger//38.185282015-06-03T15:59:14Z2015-06-04T02:44:42ZDavid Doniger
<p>David Doniger, Director, Climate and Clean Air Program, Washington, D.C.</p>
<p><i style="line-height: 1.62;">This post, written by David Baake. summarizes his</i><i style="line-height: 1.62;"> </i><a href="http://papers.ssrn.com/sol3/papers.cfm?abstract_id=2612958" style="line-height: 1.62;"><i>forthcoming article</i></a><i style="line-height: 1.62;"> in the Environmental Law Reporter.</i></p>
<p><span style="line-height: 1.62;">Last June, the Environmental Protection Agency (EPA) proposed the </span><a href="http://www2.epa.gov/carbon-pollution-standards/clean-power-plan-proposed-rule" style="line-height: 1.62;">Clean Power Plan</a><span style="line-height: 1.62;">, an initiative to cut carbon pollution from the power sector by 30 percent from 2005 levels. By any metric, the Clean Power Plan is smart policy. The Plan puts the United States on track to cut carbon pollution </span><a href="http://www2.epa.gov/carbon-pollution-standards/fact-sheet-clean-power-plan" style="line-height: 1.62;">by 730 million metric tons</a><span style="line-height: 1.62;">, an amount equal to the annual emissions of 150 million cars. It is the centerpiece of the United States' effort to meet its commitments under the historic </span><a href="https://www.whitehouse.gov/the-press-office/2014/11/11/fact-sheet-us-china-joint-announcement-climate-change-and-clean-energy-c" style="line-height: 1.62;">U.S.-China climate accord</a><span style="line-height: 1.62;">, and it will allow the United States to assume a leadership role in the </span><a href="http://www.cop21.gouv.fr/en" style="line-height: 1.62;">international negotiations</a><span style="line-height: 1.62;"> for a universal climate agreement set to conclude in Paris this December. It will </span><a href="http://www.nature.com/nclimate/journal/v5/n6/full/nclimate2598.html" style="line-height: 1.62;">prevent thousands of premature deaths</a><span style="line-height: 1.62;"> (by reducing emissions of smog, soot, and other dangerous pollutants), </span><a href="http://www.inforum.umd.edu/papers/otherstudies/2015/iec_inforum_report_041415.pdf" style="line-height: 1.62;">create tens of thousands of new jobs</a><span style="line-height: 1.62;">, and save consumers money on their </span><a href="http://www.edf.org/blog/2014/09/11/good-news-epa-standards-could-lower-electricity-bills" style="line-height: 1.62;">electric bills</a><span style="line-height: 1.62;">. All told, the Plan is expected to create </span><a href="http://www2.epa.gov/carbon-pollution-standards/fact-sheet-clean-power-plan" style="line-height: 1.62;">tens of billions of dollars</a><span style="line-height: 1.62;"> in net benefits for the United States.</span></p>
<p>Even so, the Plan will engender a fierce, protracted legal battle (as many of President Obama's <a href="http://www.scotusblog.com/case-files/cases/national-federation-of-independent-business-v-sebelius/">other</a> <a href="http://www.scotusblog.com/case-files/cases/sebelius-v-hobby-lobby-stores-inc/">major</a> <a href="http://www.scotusblog.com/case-files/cases/king-v-burwell/">domestic</a> <a href="http://cdn.ca9.uscourts.gov/datastore/opinions/2014/08/07/13-15324.pdf">initiatives</a> <a href="http://www.cadc.uscourts.gov/internet/opinions.nsf/0DAD4A1E3A868F6385257D24004FA91E/$file/13-5202-1504947.pdf">have</a>). Industry groups, together with states that are opposed to greenhouse gas regulation, have promised to use every legal device at their disposal to "<a href="http://dailycaller.com/2013/07/19/democrat-led-west-virginia-plans-to-retaliate-against-epa-anti-coal-regulations/">gum up the works</a>" for EPA, and judging by the <a href="http://switchboard.nrdc.org/blogs/ddoniger/despite_hoopla_court_challenge.html"><i>five</i></a> <a href="http://switchboard.nrdc.org/blogs/ddoniger/federal_court_tosses_nebraskas.html">challenges</a> they have already filed to EPA's <i>proposed rules</i>, this is a promise they intend to keep.</p>
<p>EPA's opponents have developed a host of <a href="http://switchboard.nrdc.org/blogs/blongstreth/grasping_at_straws_why_a_legis.html">colorful</a> <a href="http://switchboard.nrdc.org/blogs/ddoniger/peabody_energy_hires_a_well-kn.html">legal</a> <a href="http://switchboard.nrdc.org/blogs/jmorris/earth_to_mitch_mcconnell_state.html">arguments</a> as to why the Clean Power Plan must be rejected in its entirety. But most observers expect the fate of the Plan to turn on a single issue: whether EPA may establish emission goals based on measures such as renewable energy and demand-side energy conservation that are implemented "beyond the fenceline" of regulated power plants.</p>
<p>Some background: the Clean Power Plan relies on <a href="https://www.law.cornell.edu/uscode/text/42/7411">Section 111(d)</a> of the Clean Air Act, a provision that requires EPA to establish emission goals for carbon pollution from existing power plants. These goals must reflect the degree of emission reduction plants can achieve "through the application of the best system of emission reduction which . . . has been adequately demonstrated." The Clean Power Plan's emission goals reflect the application of four "building blocks" that electric utilities can implement to reduce the carbon intensity of their operations. These building blocks include efficiency improvements at individual plants and displacement of coal generation with natural gas generation, renewable energy generation, and demand-side energy conservation. EPA's proposal contemplates that power plants may comply with their obligations under the Plan by obtaining <a href="http://en.wikipedia.org/wiki/Renewable_Energy_Certificate_%28United_States%29">renewable energy credits</a> and similar instruments.</p>
<p>The efficacy of these "building block" measures is not disputed. For decades, regulators have understood that these measures are cost-effective, reliable means of reducing pollution from the power sector. In 1990, for example, Congress directed EPA to establish a <a href="https://www.law.cornell.edu/uscode/text/42/7651c">renewable energy and energy conservation program</a> to reduce power plants' emissions of sulfur dioxide; more recently, many <a href="http://www.nrel.gov/docs/fy08osti/42143.pdf">states</a> have used the same measures to reduce smog-precursors. Nonetheless, opponents of the Clean Power Plan contend that EPA is forbidden to rely on these measures to justify emission goals under Section 111. According to <a href="http://docs.house.gov/meetings/IF/IF03/20150317/103073/HHRG-114-IF03-Wstate-WoodA-20150317.pdf">these</a> <a href="http://www.epw.senate.gov/public/index.cfm?FuseAction=Files.View&amp;FileStore_id=eb1baa5f-87a1-439c-a4b2-8fc196611306">critics</a>, Section 111 contemplates that emission goals will reflect the application of <a href="http://en.wikipedia.org/wiki/Scrubber">end-of-stack technology</a>, and forbids consideration of measures that are implemented "beyond the fenceline" of the regulated plant.</p>
<p>This account reflects a selective reading of Section 111's history. Although it is true that most prior § 111 standards have been based on the application of end-of-stack technology, there is important precedent for incorporating beyond-the-fenceline measures in these standards. In 1977, for example, Congress provided that § 111 standards should reflect the availability of fuel pretreatment measures such as <a href="http://en.wikipedia.org/wiki/Coal_preparation_plant">coal washing</a>. Congress recognized that these measures were typically implemented at offsite facilities, and declined to distinguish between onsite and offsite measures. Instead, it instructed EPA to "give credit for accepted minemouth and other precombustion fuel treatment processes, whether they occur at, or are achieved by, the source or another party."</p>
<p>Two years after these amendments, EPA established a sulfur dioxide standard for coal-fired power plants that included a fuel pretreatment requirement. This standard was challenged in the D.C. Circuit in <a href="http://www.leagle.com/decision/1981955657F2d298_1882"><i>Sierra Club v. Costle</i></a>. After explaining that the standard was premised on the assumption that "utilities would enter into contract arrangements with suppliers to obtain and guarantee . . . coal supplies [that] meet the needed treatment criteria," the court upheld the standard as a lawful exercise of EPA's authority under Section 111. This decision and the associated history indicate that EPA is permitted to establish standards under Section 111 that reflect the ability of regulated entities to obtain credits for offsite activities that prevent emissions from regulated sources.</p>
<p>Precedent construing analogous provisions of the Clean Air Act supports EPA's authority to establish standards that reflect the availability of credits for offsite activities. In 1983, for example, EPA established a lead concentration standard for small gasoline refiners that lacked octane-enhancing equipment. EPA explained that these refiners would need to purchase high-octane blending components or "lead credits" from their larger competitors in order to comply with the standard. Although the statute did not explicitly contemplate this type of inter-refinery trading, the D.C. Circuit <a href="https://elr.info/litigation/%5Bfield_article_volume-raw%5D/20490/small-refiner-lead-phase-down-task-force-v-epa">upheld</a> the standard as a lawful exercise of EPA's discretion.</p>
<p>All of this demonstrates that there is a strong legal basis for EPA's proposal to establish emission goals for power plants based on the availability of credits for "building block" activities. Section 111 does not speak directly to EPA's authority to adopt this approach; thus, EPA's reasonable interpretation of the statute will be <a href="http://en.wikipedia.org/wiki/Chevron_U.S.A.,_Inc._v._Natural_Resources_Defense_Council,_Inc.">controlling</a>. In light of the precedent discussed above and the strong policy arguments for the "building block" approach, EPA's interpretation of Section 111 should easily withstand judicial review.</p>
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</div><img src="http://feeds.feedburner.com/~r/switchboard_ddoniger/~4/z0-EHfsjmRQ" height="1" width="1" alt=""/>http://switchboard.nrdc.org/blogs/ddoniger/clean_power_plan_on_solid_lega.htmlCapito Bill Brings Out the Knives for the Clean Power Plan - Frightening Remake of Murder on the Orient Expresstag:switchboard.nrdc.org,2015:/blogs/ddoniger//38.184452015-05-14T22:04:40Z2015-05-15T15:00:39ZDavid Doniger
<p>David Doniger, Director, Climate and Clean Air Program, Washington, D.C.</p>
<p><span style="line-height: 1.62;">Sen. Shelley Moore Capito (R-WV) </span><a href="http://www.capito.senate.gov/sites/default/files/ARENA%20Act_Bill%20Text.pdf" style="line-height: 1.62;">introduced a bill</a><span style="line-height: 1.62;"> this week that she called "</span><a href="http://www.capito.senate.gov/content/capito-and-bipartisan-group-senators-introduce-legislation-roll-back-%E2%80%9Cclean-power-plan%E2%80%9D" style="line-height: 1.62;">the principal legislative vehicle</a><span style="line-height: 1.62;">" to block President Obama's historic Clean Power Plan. Capito's bill is a big polluters' wish list - a direct attack on the Clean Air Act and the national guarantee given 45 years ago to protect all Americans' health and their environment from air pollution. </span></p>
<p><span style="line-height: 1.62;">Sen. Capito's bill thrusts multiple knives into the Clean Air Act, seeking to kill the Clean Power Plan in as many ways as coal and power company lobbyists can think of. It's like </span><i style="line-height: 1.62;">Murder on the Orient Express</i><span style="line-height: 1.62;"> only without the suspense, since Capito's co-perpetrators - 25 Republicans and one Democrat - revealed themselves on Wednesday. </span></p>
<p></p>
<p>
<iframe width="560" height="315" src="https://www.youtube.com/embed/u0ykCP1AYlk" frameborder="0" allowfullscreen=""></iframe>
</p>
<p><span style="line-height: 1.62;">They're not just seeking to block action here at home, to let American power plants keep dumping unlimited amounts of dangerous carbon pollution into the air. They're also trying to scuttle an international agreement to curb carbon pollution around the world.</span></p>
<p><span style="line-height: 1.62;">U.S. leadership has already brought forth pollution-cutting pledges by China and other major emitters and set the stage for success in Paris later this year. Capito's bill seeks to block all that by breathing life into </span><a href="http://switchboard.nrdc.org/blogs/ddoniger/mitch_mcconnells_weak_hand.html" style="line-height: 1.62;">Mitch McConnell's peculiar warning</a><span style="line-height: 1.62;"> that the U.S. can't be trusted to honor its international commitments.</span></p>
<p><span style="line-height: 1.62;">Here's a police report on the multiple knife wounds the Capito bill would inflict on the Clean Power Plan and the Clean Air Act. The bill would:</span></p>
<ul>
<li><b><span style="text-decoration: underline;">Rub out the Clean Power Plan</span></b><b>. </b>The bill declares that the Clean Power Plan proposal for existing plants and EPA's proposed standards for new plants "shall be of no force or effect, and shall be treated as though the rules had never been issued." With admirable directness, the EPA proposals are simply disappeared.</li>
</ul>
<ul>
<li><b><span style="text-decoration: underline;">Block EPA's proposed standard for new coal plants</span></b><b>.</b> Not content just to rub out the pending proposals, the bill rewrites the Clean Air Act to block EPA from setting future standards based on the best demonstrated pollution controls - changing criteria that EPA has used for 45 years to set advanced technology standards for new industrial sources. The bill's new criteria would effectively limit standards for new coal plants to the pollution levels of today's dirty plants. EPA would have to start over on new plant standards, and since new source standards are a predicate for regulating existing sources, the bill would effectively block EPA's plans to regulate existing plants too.</li>
</ul>
<ul>
<li><b><span style="text-decoration: underline;">Block standards until all lawsuits are resolved</span></b><b>.</b> The polluters will sue to stop the Clean Power Plan like they do almost any standard. But lawsuits are not supposed to stop the clock - the first compliance obligations don't come until 2020, and both states and polluters are expected to make plans to comply even if they sue. Current law already allows courts to "stay" a rule if challengers show both a high likelihood of success and immediate irreparable harm. The Capito bill provides a new "get out of standards free" card: it would stop everything automatically until all lawsuits are resolved, without any need for challengers to show they have a good prospect of winning or prove any immediate or irreparable harm. This would be an unprecedented "stop work" order found nowhere else in the nation's environmental or regulatory laws.</li>
</ul>
<ul>
<li><b><span style="text-decoration: underline;">Force EPA to "pick your poison" - to choose between carbon standards and mercury standards</span></b><b>.</b> Tucked into the bill is a radical rewrite of the Clean Air Act that would block limits on power plant carbon pollution because power plant <i>mercury</i> pollution is already limited under a separate part of the Act. That's not the way the current law works. We shouldn't have to choose between protecting our kids from mercury pollution or climate disruption.</li>
</ul>
<ul>
<li><b><span style="text-decoration: underline;">Destroy the federal guarantee that makes the Clean Air Act work</span></b><b>. </b>For big existing pollution sources like power plants, the Clean Air Act sets national pollution standards and allows states the first shot at regulating the polluters. But it also guarantees that EPA will step in and regulate the polluters directly if states do not act. This bill destroys the federal backstop guarantee by letting governors simply "opt out," shielding their polluters from any pollution controls.</li>
</ul>
<p><span style="line-height: 1.62;">There's even more stuffed into this nasty little bill. There are report-to-Congress and modeling requirements designed to show that the Clean Power Plan by itself won't solve global warming. There's a prohibition on cutting a state's highway funds if it refuses to write a power plant implementation plan - taking away a power EPA does not even have under existing law. And there's a requirement for EPA to issue state-specific model plans - oddly, an apparent mandate for EPA to do the state's planning work for it.</span></p>
<p><span style="line-height: 1.62;">Now that Sen. Capito and her allies have packed all of their legislative knives into one package, Sen. Jim Inhofe (R-OK), chairman of the environment committee, </span><a href="http://thehill.com/policy/energy-environment/241952-senate-gop-aims-to-overturn-epa-climate-rules" style="line-height: 1.62;">vowed</a><span style="line-height: 1.62;"> that the bill is "the most significant thing we will do in the Environment and Public Works Committee this year."</span></p>
<p><span style="line-height: 1.62;">But few observers think they have the votes to pass this bill through the Senate. Only half of the GOP caucus has signed on. Notably, four of the five Republicans who earlier this year recognized that "</span><a href="http://switchboard.nrdc.org/blogs/ddoniger/from_know-nothingism_to_do-not.html" style="line-height: 1.62;">human activity contributes significantly to climate change</a><span style="line-height: 1.62;">" have had the good sense to keep their names off this bill - Sens. Kelly Ayotte (R-NH), Susan Collins (R-ME), Lindsay Graham (R-SC), and Mark Kirk (R-IL). And no Democrat besides Sen. Joe Manchin (D-WV) has signed on.</span></p>
<p><span style="line-height: 1.62;">But we cannot rest easy. Americans concerned about climate change need to raise their voices to make sure this train does not leave the station.</span></p>
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</div><img src="http://feeds.feedburner.com/~r/switchboard_ddoniger/~4/SS3ixgwppdo" height="1" width="1" alt=""/>http://switchboard.nrdc.org/blogs/ddoniger/capito_bill_brings_out_the_kni.htmlWant to Save Thousands of American Lives Each Year? Cut Power Plant Pollutiontag:switchboard.nrdc.org,2015:/blogs/ddoniger//38.183912015-05-04T16:21:19Z2015-05-04T16:23:44ZDavid Doniger
<p>David Doniger, Director, Climate and Clean Air Program, Washington, D.C.</p>
<p><span style="line-height: 1.62;">A </span><a href="http://eng-cs.syr.edu/our-departments/civil-and-environmental-engineering/research/nature-climate-change-clean-air-article/" style="line-height: 1.62;">new study</a><span style="line-height: 1.62;">, published in the journal </span><i style="line-height: 1.62;">Nature Climate Change</i><span style="line-height: 1.62;"> today</span><i style="line-height: 1.62;">,</i><span style="line-height: 1.62;"> calculates that the Environmental Protection Agency's Clean Power Plan will save thousands of lives every year.</span></p>
<p><span style="line-height: 1.62;">The study, by researchers at Harvard, Syracuse, and Boston Universities and Resources for the Future, finds that a strategy to meet the proposed Clean Power Plan targets that emphasizes energy efficiency and renewable power could save 3,500 lives each year. </span></p>
<p><span style="line-height: 1.62;">That's the scientists' estimate of life-saving that will flow from cutting carbon pollution much as the EPA has proposed. Cutting carbon pollution also cuts emissions of other pollutants that cause soot and smog - toxic quantities of fine particles and ozone - that directly harm the health of our kids, our seniors, and friends and neighbors throughout the population. </span></p>
<p><span style="line-height: 1.62;">We can likely save even more than 3,500 lives if the EPA strengthens the final Clean Power Plan rule, expected out this summer. </span><a href="http://docs.nrdc.org/air/files/air_14120101a.pdf" style="line-height: 1.62;">NRDC's analysis shows</a><span style="line-height: 1.62;"> that we can economically cut power plants' carbon pollution by </span><i style="line-height: 1.62;">50 percent more</i><span style="line-height: 1.62;"> than the EPA proposed, and </span><a href="http://www.nrdc.org/media/2014/140529.asp" style="line-height: 1.62;">create hundreds of thousands of new jobs</a><span style="line-height: 1.62;">. "There's definitely room for additional benefits," says lead researcher Dr. Charles Driscoll, a professor in the department of civil and environmental engineering at Syracuse University. "You can push further."</span></p>
<p><span style="line-height: 1.62;">The lives saved will come from cutting the hundreds of thousands of tons of sulfur dioxide and oxides of nitrogen that pour out of our nation's power-plant smokestacks along with carbon dioxide. These pollutants form dangerous soot and smog as they float downwind and cook in the atmosphere. These pollutants increase our risk of heart attacks, asthma attacks, respiratory diseases like emphysema, and even lung cancer. </span></p>
<p><span style="line-height: 1.62;">When the green eyeshade types assign dollar numbers to these health benefits, you get "a very good benefit-cost ratio," says Syracuse's Dr. Driscoll.</span></p>
<p><span style="line-height: 1.62;">Ironically, the most life-saving will take place in the very states where many elected officials and political candidates most adamantly oppose the Clean Power Plan: Kentucky, Indiana, Ohio, Texas, West Virginia. It's the very states where coal use is highest, that public health benefits most. (Mitch McConnell, please take note.)</span></p>
<p><span style="line-height: 1.62;">The Harvard-Syracuse-Boston numbers are above and beyond the lives saved by other Clean Air Act standards (such as the federal </span><a href="http://www.epa.gov/mats/" style="line-height: 1.62;">Mercury and Air Toxics Standard</a><span style="line-height: 1.62;">, the </span><a href="http://www.epa.gov/airmarkets/programs/cair/" style="line-height: 1.62;">Clean Air Interstate Rule</a><span style="line-height: 1.62;">) and state renewable energy and energy efficiency policies. (The MATS rule alone will save 7,600 lives a year and prevent 4,700 non-fatal heart attacks.) These lives saved by the Clean Power Plan will be additional to those.</span></p>
<p><span style="line-height: 1.62;">Even more health benefits come from curbing power plants' carbon dioxide and mitigating climate change. Climate change is already causing </span><a href="http://www.epa.gov/climatechange/science/indicators/health-society/heat-deaths.html" style="line-height: 1.62;">heat-related deaths</a><span style="line-height: 1.62;"> and deaths from other extreme weather events. Hurricane Sandy, for instance, caused </span><a href="http://www.cdc.gov/mmwr/preview/mmwrhtml/mm6220a1.htm" style="line-height: 1.62;">at least 117 deaths, 45 percent from drowning</a><span style="line-height: 1.62;">.</span></p>
<p><span style="line-height: 1.62;">The opportunity to save thousands of lives doesn't come to us every day. With all that's at stake, I hope the EPA thinks big as it decides this summer on the final Clean Power Plan targets. </span></p>
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</div><img src="http://feeds.feedburner.com/~r/switchboard_ddoniger/~4/eo3BhtVHZ94" height="1" width="1" alt=""/>http://switchboard.nrdc.org/blogs/ddoniger/want_to_save_thousands_of_amer.htmlOklahoma - First State to Choose a Federal Plan for Power Plant Carbon Pollution (Don't Worry, They'll be O.K.)tag:switchboard.nrdc.org,2015:/blogs/ddoniger//38.183702015-04-30T01:09:41Z2015-04-30T01:30:41ZDavid Doniger
<p>David Doniger, Director, Climate and Clean Air Program, Washington, D.C.</p>
<p>Oklahoma Governor Mary Fallin issued an <a href="https://www.sos.ok.gov/documents/Executive/978.pdf">executive order</a> yesterday prohibiting her state's environmental agency from even beginning to develop a state plan to limit power plants' carbon pollution.</p>
<p>By refusing to write her own plan, Gov. Fallin becomes the first governor to take Sen. Mitch McConnell's "<a href="http://switchboard.nrdc.org/blogs/ddoniger/mitch_mcconnells_weak_hand.html">just say no</a>" pledge. She also becomes the first governor to pass up the opportunity to tailor a plan to her own state's needs and opportunities, and the first to turn over implementation to the federal government.</p>
<p><a href="http://switchboard.nrdc.org/blogs/ddoniger/assets_c/2015/04/Welcome-to-Oklahoma-sign-19560.html" onclick="window.open('http://switchboard.nrdc.org/blogs/ddoniger/assets_c/2015/04/Welcome-to-Oklahoma-sign-19560.html','popup','width=390,height=295,scrollbars=yes,resizable=no,toolbar=no,directories=no,location=no,menubar=no,status=no,left=0,top=0'); return false"><img src="http://switchboard.nrdc.org/blogs/ddoniger/assets_c/2015/04/Welcome-to-Oklahoma-sign-thumb-390x294-19560.jpg" width="390" height="294" alt="Welcome-to-Oklahoma-sign.JPG" class="mt-image-right" style="float: right; margin: 0 0 20px 20px;" /></a>Power plants are the number one source of the carbon pollution that drives dangerous climate change. There are no national limits on that pollution now. The Environmental Protection Agency's Clean Power Plan, expected to be finalized this summer, will set state-by-state limits for power plants to cut back that pollution, giving each state the flexibility to tap the wide variety of cleaner resources in the way that best suits its circumstances.</p>
<p>Oklahoma Senator James Inhofe is known for denouncing <a href="http://switchboard.nrdc.org/blogs/dlashof/mann_bites_dogged_senator_inho.html">climate science as a hoax</a>, and Oklahoma Attorney-General Scott Pruitt is known for his <a href="http://www.nytimes.com/2014/12/07/us/politics/energy-firms-in-secretive-alliance-with-attorneys-general.html">close ties to the fossil fuel industry</a>. So it's not surprising that conservative Republican politicians in the Sooner State would rather say "later" to carbon pollution standards.</p>
<p>Gov. Fallin is within her rights, of course, to leave implementation to the EPA. The Clean Air Act gives each state the first opportunity to craft a plan to meet federal pollution standards, but the state can refuse. If a state does not act, however, the duty falls to the EPA to write and implement regulations that apply directly to the state's power plants.</p>
<p>Apart from Oklahoma, states aren't rushing to jump on the "just say no" bandwagon. Most states are actively engaging in the planning process, even before the final EPA standards come out. That's because most power companies and political leaders prefer to have their states in the lead, making the choices involved in writing implementation plans, rather than leaving it to the EPA.</p>
<p>Where Gov. Fallin complains of "unworkable barriers," a growing number of other governors see economic and job creation opportunities. Another Republican, Michigan Gov. Rick Snyder issued a special message in March on "<a href="http://www.michigan.gov/documents/150313_Energy_Message_FINAL_484033_7.pdf">Ensuring Affordable, Reliable, and Environmentally Protective Energy for Michigan's Future</a>." He announced a <a href="http://www.nrdc.org/media/2015/150313b.asp">bold vision</a> for cutting energy waste, doubling renewable generation, and curbing emissions. Gov. Snyder said: "We need to act now to make sure we have the tools to solve our own problems and keep decision-making in Michigan, not in Washington D.C."</p>
<p>But whether its plan is written by the governor or by the EPA, Oklahoma will be O.K. The state has enormous potential to cut its carbon pollution in ways that will help build Oklahoma's economy, create jobs, and save electricity customers money. The state ranks <a href="http://www.nrel.gov/gis/re_potential.html">9<sup>th</sup> in onshore wind power potential and 11<sup>th</sup> in solar power potential</a>. (As <a href="http://www.stlyrics.com/lyrics/oklahoma/oklahoma.htmhttp:/www.stlyrics.com/lyrics/oklahoma/oklahoma.htm">the song says</a>, the wind comes sweepin' down the plain.) Oklahoma also has yet to tap into energy efficiency, its cheapest energy resource - it ranked <a href="http://aceee.org/research-report/u1408">36<sup>th</sup> in the country in utility efficiency programs</a> in 2013, with annual power savings less than a fifth of the rate already achieved in states with more advanced programs. And, of course, the state has all that gas.</p>
<p>So there's nothing earth-shaking here for state officials to be afraid of.</p>
<p>There's no doubt that Attorney-General Pruitt will challenge the Clean Power Plan in the courts. He already jumped the gun, with 13 other state AGs, in a case argued two weeks ago before the U.S. Court of Appeals in Washington. That case seems <a href="http://switchboard.nrdc.org/blogs/ddoniger/despite_hoopla_court_challenge.html">bound to fail</a>, as the attack got little sympathy from a conservative three-judge panel. EPA's legal position will be strong when the standards are finalized this summer.</p>
<p>If the state does nothing in the following year, then a federal plan will come into play.</p>
<p>Perhaps for that reason, even Gov. Fallin has left herself an escape hatch. Her executive order allows the state to pick up the planning and implementation role again if doing so is deemed required by the state attorney-general or by the courts.</p>
<p>Meanwhile, most states seem committed to stay engaged, and to keep Clean Power Plan implementation in their own hands.</p>
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</div><img src="http://feeds.feedburner.com/~r/switchboard_ddoniger/~4/qzXMg_SDMR0" height="1" width="1" alt=""/>http://switchboard.nrdc.org/blogs/ddoniger/oklahoma_-_first_state_to_choo.htmlDeal on HFC Super-Pollutants Inches Forwardtag:switchboard.nrdc.org,2015:/blogs/ddoniger//38.183332015-04-24T11:44:45Z2015-04-29T13:45:38ZDavid Doniger
<p>David Doniger, Director, Climate and Clean Air Program, Washington, D.C.</p>
<p><span style="line-height: 1.62;">A global deal to phase down the powerful heat-trapping chemicals called hydrofluorcarbons (HFCs) inched forward after a week of international negotiations in Bangkok under the Montreal Protocol, the world's most successful environmental treaty.</span></p>
<p>Prospects for progress rose sharply in mid-April when <a href="http://switchboard.nrdc.org/blogs/ajaiswal/progress_on_climate_change_ind.html">India put forward its own proposal</a> to phase down HFCs using the Montreal treaty. The Indian initiative means there are now four specific phase-down proposals under discussion - including ones from the U.S., Mexico, and Canada, from Micronesia, and from the European Union. China also supports an HFC phase-down. Curbing HFCs also has the support of the entire African bloc and nearly all Latin American, Asian, and small island nations. (NRDC and our partners have put together a <a href="http://switchboard.nrdc.org/blogs/ajaiswal/progress_on_climate_change_ind_1.html">fact sheet on the four proposals</a>.)</p>
<p>HFCs are manufactured chemicals used in air conditioning and other applications. They have up to 10,800 times the heat-trapping power of carbon dioxide, on a pound for pound basis. And they are <a href="http://switchboard.nrdc.org/blogs/ddoniger/SAP-OEWG_2015-04-23.pptx">the fastest growing climate-changing pollutants</a>, on pace to make up as much as a quarter of the heat-trapping pollution in the atmosphere by mid-century.</p>
<p>The Bangkok meeting began with a two-day workshop documenting rapid progress in developing new low-impact coolants and air conditioning equipment to use them. Solutions are on the market or under development for nearly every HFC application. An HFC phase-down agreement will send the market signals needed for full-scale deployment of the solutions.</p>
<p>The Bangkok meeting showed the broad support that has developed in the six years since the North American and small island countries introduced the first HFC phase-down proposals in 2009. The biggest developing countries - China, India, and Brazil - are ready to engage. And the African Group - all 54 nations on the continent - is united in driving the process forward.</p>
<p>But the meeting also showed that not everyone is onboard. Saudi Arabia and a small group of clients - including Kuwait, Pakistan, and Bahrain - prevented actual negotiations from getting under way, <a href="http://switchboard.nrdc.org/blogs/ddoniger/countries_accelerate_talks_on.html">just as they had at the last meeting</a> in November 2014. Specifically, they opposed forming a "contact group," the formal vehicle for hammering out solutions to specific problems.</p>
<p>The Montreal Protocol's tradition of action by consensus, while usually a source of strength, turns into a major obstacle when the majority is ready to move but a few countries are dissatisfied.</p>
<p>Saudi Arabia struck a defiant tone through much of the meeting. "We will never agree in one year, five years, or 100 years" to start these negotiations, declared Taha Zatari, the chief Saudi delegate on Thursday. Frustrations boiled over on Friday morning, when Senegal, speaking on behalf of the entire African Group, accused Saudi Arabia of "blocking" - tough talk in a diplomatic setting.</p>
<p>On the surface, the Saudis have a plausible complaint: It's really hot in our part of the world, and we need to be sure that we will have new air conditioning technologies before committing to new requirements.</p>
<p>The fallacy of the Saudi position is that none of the HFC phase-down proposals would require countries with hot climates to curb HFC use <i>now</i>. All of the HFC proposals contemplate that developing countries will act after developed countries, with financial assistance from the Protocol's Multilateral Fund.</p>
<p>It is easy to imagine a schedule for developing country reductions that provides plenty of time before HFC reductions kick in. And to add special provisions that allow extra time, if needed, to perfect alternatives for air conditioning in very high temperatures.</p>
<p>Countries backing an HFC phase-down made it crystal clear that they are open to these solutions. But the Saudis are having trouble taking "yes" for an answer.</p>
<p>Clearly concerned about being tagged as "blockers," the Saudis softened their stance Friday afternoon. They agreed to holding an "intersessional" meeting in the next two months, "with a view toward establishing a contact group" on HFC proposals at the next negotiating session in Paris in July. Only a small concession, but movement nonetheless.</p>
<p>And so the Bangkok meeting achieved its minimum objectives: solidifying support for acting on HFCs and inching the process forward.</p>
<p>Nearly every country will come to Paris in July ready to roll up its sleeves and start hammering out an agreement. A landmark HFC deal could be reached as early as November, when the Montreal Protocol parties meet in Dubai.</p>
<p>An HFC phase-down agreement would be a big deal in its own right, and it would be a shot in the arm towards the bigger climate change deal countries are seeking to reach in Paris in December.</p>
<p>But the Saudis can still block the process. Do they want to take the heat?</p>
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</div><img src="http://feeds.feedburner.com/~r/switchboard_ddoniger/~4/jDhWr_uQqMo" height="1" width="1" alt=""/>http://switchboard.nrdc.org/blogs/ddoniger/deal_on_hfc_super-pollutants_i.htmlDespite Hoopla, Court Challenge to Clean Power Plan Likely to Failtag:switchboard.nrdc.org,2015:/blogs/ddoniger//38.182872015-04-16T21:35:51Z2015-04-17T22:19:03ZDavid Doniger
<p>David Doniger, Director, Climate and Clean Air Program, Washington, D.C.</p>
<p><span style="line-height: 1.62;">The much ballyhooed legal challenge to the Environmental Protection Agency's proposed Clean Power Plan, brought by coal companies and conservative state attorneys-general, ran out of steam today in the U.S. Court of Appeals in Washington. Judges Karen LeCraft Henderson, Thomas Griffith, and Brett Kavanaugh, a decidedly conservative panel, heard an hour and a half of oral arguments today in a packed courtroom. Here are three takeaways from the arguments:</span></p>
<p><i></i><i> 1. No final action, no jurisdiction</i></p>
<p>The court showed little sympathy for the challengers' unprecedented proposition that they can sue EPA over the Clean Power Plan <i>proposal</i>, to stop the rulemaking in its tracks before the agency makes its final decision. Judges Griffith and Kavanaugh hit this point exceptionally hard, each saying that allowing premature challenges would lead the court into a "morass." Griffith asked repeatedly for any precedent allowing lawsuits over proposals, and any principle to govern when to intervene. The challengers conceded there is no precedent and could offer no principle. West Virginia's lawyer said, "There's always a first time..."</p>
<p>As Justice Department counsel explained, it's basic administrative law that one cannot challenge a <i>proposed </i>rule, before an agency has taken a final action that creates any obligations, before the agency explains its final legal, policy, and factual conclusions after considering and responding to public comments. This creates a full administrative record for courts to review, and there is none now. Challengers will have their day in court after EPA issues the final Clean Power Plan standards.</p>
<p>The challengers claimed that this case deserves an exception because it turns on a legal interpretation and will have big real world consequences. The states, they claimed, already have to expend resources to prepare. But Judge Kavanaugh said this situation is "not that extraordinary." He noted that many other cases turn on legal interpretations and have big consequences. Judge Griffith asked for any case where merely "bracing for the costs" of a proposed regulation conferred standing to sue, and the challengers had nothing to offer.</p>
<p>In short, there's no sign the court will take up the invitation to jump in before EPA has a chance to finish the Clean Power Plan.</p>
<p><i></i><i> 2. A glimpse into the merits, no more</i></p>
<p>Lawyers for the coal companies and challenging states contended they had found a legal flaw so clear that the court should stretch the normal rules to decide it early. They claim the statute unambiguously prohibits EPA from regulating power plant emissions of carbon dioxide under the Clean Power Plan because the agency has already regulated power plant emissions of mercury under another provision.</p>
<p>Though the challengers contend this prohibition is black and white, it is anything but clear. Congress adopted section 111(d) in 1970 to assure that there would be "no gaps" in the Clean Air Act's coverage of dangerous air pollutants. Existing sources' emissions of pollutants that cause smog (ozone) and soot (fine particles) are curbed under one provision (section 110). Existing sources' emissions of especially toxic pollutants, such as mercury, are controlled under a second provision (section 112). And existing sources' emissions of any other dangerous pollutants, including carbon dioxide and five other heat-trapping pollutants, are regulated under a third provision (section 111(d)).</p>
<p>Indeed, in a 2011 case called <i><a href="https://www.law.cornell.edu/supct/html/10-174.ZS.html">American Electric Power v. Connecticut</a></i>, the Supreme Court specifically ruled that section 111(d) of the Act empowers EPA to curb power plants' carbon dioxide emissions. In fact, power company lawyers in that case pressed that very argument upon the Supreme Court. That was then, this is now, it seems.</p>
<p>In a theory dreamed up only after the <i>American Electric Power </i>decision, the coal industry and its supporting states argue that Congress abandoned the "no gaps" approach in 1990 Clean Air Act amendments and put EPA to a Sophie's choice: You can protect people from power plants' mercury emissions, or from their carbon dioxide emissions, but not both. Power plants, they claim, must be protected from "double regulation."</p>
<p>This is total invention. Power plants emit a host of dangerous pollutants, and these emissions are regulated under at least a half dozen parts of the Clean Air Act. There's no basis for the theory that Congress thought power plants deserved protection against "double regulation," and no basis for thinking that Congress intended to force EPA to choose between curbing mercury pollution and curbing carbon pollution.</p>
<p>The briefs filed by EPA, by supporting states led by New York, by NRDC and other environmental groups, and by Calpine Corporation, a major power producer, all show that section 111(d) is there to curb dangerous pollutants that are not curbed under section 112. There are no gaps in the statutory scheme that let some dangerous pollutants off scot-free.</p>
<p>When EPA completes the rule, the court will apply the familiar principles of <i><a href="https://www.law.cornell.edu/supremecourt/text/467/837#writing-USSC_CR_0467_0837_ZO">Chevron USA v. NRDC</a>, </i>to determine if EPA has reasonably interpreted the law. That's the Supreme Court case holding that Congress gave agencies the first opportunity to interpret the laws they are charged to implement. Under <i>Chevron</i>, when a statute is ambiguous, courts must defer to an agency's reasonable interpretation.</p>
<p>There's a special twist here because the 1990 amendments included <i>two</i> provisions modifying the same sentence in section 111(d) - each change giving that sentence a different ending. In the final rule, EPA will undoubtedly give its views on what each amendment means, and how the two interact. The court will then have to decide if EPA's interpretation is reasonable. Judge Griffith noted that <i>Chevron </i>deference applies not only when a single statutory provision is ambiguous, but also when two statutory provisions conflict. That's the view of a majority of Supreme Court justices in a case called <a href="http://www.supremecourt.gov/opinions/13pdf/12-930_4g18.pdf"><i>Scialabba v. Cuellar de Orsorio</i></a><i>. </i></p>
<p>The court dipped its toes into these legal interpretation questions, but little more. The judges seemed to accept the Justice Department's argument that EPA must be allowed to complete the rulemaking and definitively explain its final decision, including its interpretation of the interplay between sections 111(d) and 112. Questions of statutory interpretation will definitely come before the court once EPA issues its final standards. But there's no sign that this panel of judges will take them up now.</p>
<p><i style="line-height: 1.62;"> 3. </i><i style="line-height: 1.62;">No interest in far-fetched constitutional theories</i></p>
<p>These cases have drawn the most public and political attention because of the involvement of Harvard Professor Laurence Tribe - hired by coal giant Peabody Energy but speaking today for all the challengers. He has launched far-fetched constitutional theories, including claims that the Clean Power Plan violates the Fifth and Tenth Amendments of the Constitution and usurps Congress's lawmaking powers. Professors <a href="http://today.law.harvard.edu/is-the-presidents-climate-plan-unconstitutional/">Richard Lazarus and Jody Freeman</a> at Harvard and <a href="http://democrats.energycommerce.house.gov/sites/default/files/documents/Testimony-Revesz-EP-Clean-Power-Plan-2015-03-17.pdf">Richard <span style="line-height: 1.62;">Revesz</span></a> a<span style="line-height: 1.62;">t NYU have shown how far out Tribe's theories really are.</span></p>
<p>Perhaps a little cautious in front of actual judges, Tribe today avoided some of the inflammatory language ("burning the Constitution") that he has deployed in congressional testimony and in the <i>Wall Street Journal</i>. But he did not really skimp, arguing today that the Clean Power Plan "commandeers" states into being mere "puppets" for the EPA.</p>
<p>This is a total distortion of "cooperative federalism," which has been at the heart of the Clean Air Act for 45 years, and which the Supreme Court has repeatedly approved. As it has dozens of times since 1970, EPA will set national standards to limit power plants' carbon pollution. Each state will then have the first opportunity to write plans to apply those standards to the power plants in that state.</p>
<p>Contrary to Professor Tribe, EPA cannot force the state to write a plan. But if the state declines, then EPA is charged with writing and enforcing a federal plan directly limiting those power plants' pollution. In this instance, EPA regulates the power plants directly (just as it does already for acid rain and toxic pollutants) - it does not force the state to do anything.</p>
<p>That EPA will regulate the power plants directly is the federal guarantee that makes the Clean Air Act work. But EPA cannot "commandeer" the states into regulating against their will.</p>
<p>Tribe argued that the threat of a "secret unknown plan" will force the states to knuckle under. In real life, as I've shown <a href="http://switchboard.nrdc.org/blogs/ddoniger/why_states_arent_rushing_to_ju.html">here</a>, most states are actively engaged because both power companies and political leaders prefer to have the states in the lead making the choices involved in writing implementation plans, rather than leaving it to EPA.</p>
<p>In any case, EPA has announced that it will propose the contents of federal plans this summer, eliminating the scenario of mystery and dark threats that Professor Tribe imagines. States and other stakeholders will have a full opportunity to comment on the proposed federal plan regulations. When the elements of the federal plan are finalized, they'll serve both as a model to help states design their own plans and as a clear guidance on how EPA will curb power plants' emissions directly if a state chooses not to act.</p>
<p>For all the attention Professor Tribe has gotten these past few weeks, there's no sign that he made any dent in the court's thinking.</p>
<p style="text-align: center;">* * *</p>
<p>In 2012 the appeals court summarily dismissed another premature challenge to EPA's proposed standards for carbon emissions for <i>new</i> power plants, in a case called <a href="http://switchboard.nrdc.org/blogs/ddoniger/court_kills_zombie_power_plant.html"><i>Las Brisas Energy Center v. EPA</i></a>. The two-paragraph ruling stated simply: "The challenged proposed rule is not final agency action subject to judicial review." That seems to be where this panel is headed too. Its opinion could be similarly short and sweet.</p>
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</div><img src="http://feeds.feedburner.com/~r/switchboard_ddoniger/~4/_tgIDLSojgY" height="1" width="1" alt=""/>http://switchboard.nrdc.org/blogs/ddoniger/despite_hoopla_court_challenge.htmlClimate Change and the Courts: Court Rejects Latest Industry Ploy to Block Carbon Pollution Limits tag:switchboard.nrdc.org,2015:/blogs/ddoniger//38.182592015-04-11T00:23:54Z2015-04-11T02:12:54ZDavid Doniger
<p>David Doniger, Director, Climate and Clean Air Program, Washington, D.C.</p>
<p>In the <a href="http://switchboard.nrdc.org/blogs/ddoniger/amended%20judgment%20in%20UARG-CRR.pdf">latest court ruling on climate change</a>, the federal court of appeals in Washington refused to block clean air safeguards that cut dangerous carbon pollution from the biggest new power plants and other industrial facilities.</p>
<p>The court on Friday rejected industry efforts to block Clean Air Act permit provisions that require large new industrial facilities to use the "best available" pollution controls for heat-trapping carbon dioxide and five other greenhouse gases.</p>
<p>The ruling means that industries building big new power plants and other industrial facilities will continue to be required to install and use modern, state-of-the-art pollution controls to curb their climate-changing pollution, just as they must for other kinds of dangerous air pollution.</p>
<p>(It's easy to get confused between the Clean Air Act's <i>permit </i>requirements, which apply only to big new sources, and the law's <i>standard-setting </i>provisions, which EPA is using now to establish the Clean Power Plan to cut carbon pollution from the nation's 1500 existing power plants. I've explained the differences <a href="http://switchboard.nrdc.org/blogs/ddoniger/carbon_pollution_standards_and.html">here</a>. The standard-setting provisions are by far the more important, but EPA's court victory on the permit provisions is significant in its own right.)</p>
<p>So here's the background.</p>
<p>Last June, the Supreme Court ruled that large new plants which require clean air permits must install the "best available control technology" (or BACT) for their carbon pollution. Justice Antonin Scalia, who wrote the opinion in <i><a href="http://scholar.google.com/scholar_case?case=5508189020577131514&amp;hl=en&amp;as_sdt=6&amp;as_vis=1&amp;oi=scholarr">Utility Air Regulatory Group v. EPA</a></i> upholding the BACT-for-carbon requirement, <a href="http://www.nytimes.com/2014/06/24/us/justices-with-limits-let-epa-curb-power-plant-gases.html?hp&amp;action=click&amp;pgtype=Homepage&amp;version=LedeSum&amp;module=first-column-region&amp;region=top-news&amp;WT.nav=top-news&amp;_r=0">said</a> that "EPA is getting almost everything it wanted in this case."</p>
<p>EPA's win on the BACT requirement for big new sources capped off its victory on other issues in the lower court. The U.S. Court of Appeals for the District of Columbia Circuit (where the case goes by the name <i>Coalition for Responsible Regulation v. EPA</i>) had upheld EPA's "endangerment determination" (the finding that carbon pollution drives dangerous climate change) and the agency's landmark clean car standards (cutting new cars' carbon pollution in half, and doubling their miles-per-gallon, by 2025).</p>
<p>The Supreme Court sent the case back to the D.C. Circuit to clean up odds and ends, and that should have been the end of it.</p>
<p>But the losing parties made one more stab to convert their defeat into victory. Although companies have been getting BACT permits for carbon pollution since 2011, the industry lawyers asked the appeals court to halt those requirements until EPA issued another set of rules to establish levels of carbon pollution considered <i>"de minimis," </i>or too small to matter.</p>
<p>It's pretty technical - and in <i>Latin</i> no less. But if the industry lawyers had got their way, big new plants could have been built without any limits on their dangerous carbon pollution for years to come.</p>
<p>The D.C. Circuit rejected this last Hail Mary pass in its brief <a href="http://switchboard.nrdc.org/blogs/ddoniger/amended%20judgment%20in%20UARG-CRR.pdf">ruling</a> today. The court told EPA to "consider whether any further revisions to its regulations are appropriate in light of UARG v. EPA ..., and if so, undertake to make such revisions."</p>
<p>Here's the important point: While EPA considers these questions, the Clean Air Act's "best available control technology" requirements remain fully in effect for carbon pollution, just as for any other dangerous pollutant.</p>
<p>That's another important court victory for the fight against climate change, for EPA and the Clean Air Act, and - most importantly - for all of us.</p>
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</div><img src="http://feeds.feedburner.com/~r/switchboard_ddoniger/~4/YtWLP89V6Nc" height="1" width="1" alt=""/>http://switchboard.nrdc.org/blogs/ddoniger/climate_change_and_the_courts_.htmlMitch McConnell's Weak Handtag:switchboard.nrdc.org,2015:/blogs/ddoniger//38.182252015-04-03T15:09:57Z2015-04-03T21:33:26ZDavid Doniger
<p>David Doniger, Director, Climate and Clean Air Program, Washington, D.C.</p>
<p><span style="line-height: 1.62;">In case you weren't sure, Senate Majority Leader Mitch McConnell doesn't care for President Obama's climate actions at home and climate diplomacy abroad. He's made that quite clear recently. </span></p>
<p>Last month McConnell <a href="http://www.mcconnell.senate.gov/public/index.cfm?p=newsletters&amp;ContentRecord_id=d57eba06-0718-4a22-8f59-1e610793a2a3&amp;ContentType_id=9b9b3f28-5479-468a-a86b-10c747f4ead7&amp;Group_id=2085dee5-c311-4812-8bea-2dad42782cd4">wrote the nation's governors</a>, urging them to reject Clean Air Act curbs on power plant carbon pollution. Last week, he <a href="http://www.eenews.net/eedaily/2015/03/27/stories/1060015889">forced a vote</a> on a non-binding budget resolution amendment, to take away a power the Environmental Protection Agency does not even have. And this week, he <a href="http://www.mcconnell.senate.gov/public/index.cfm?p=PressReleases&amp;ContentRecord_id=9d042b43-cbc5-4ffb-8cca-2e4125f769d2&amp;ContentType_id=c19bc7a5-2bb9-4a73-b2ab-3c1b5191a72b&amp;Group_id=0fd6ddca-6a05-4b26-8710-a0b7b59a8f1f&amp;MonthDisplay=3&amp;YearDisplay=2015">warned "our international partners"</a> to "proceed with caution" before making a global climate deal with the U.S. later this year.</p>
<p>Are these signs of strength, or signs of weakness?</p>
<p>However much McConnell wants to block the president's Clean Power Plan here at home and blow up the emerging international climate agreement, his recent moves signal weakness, not strength.</p>
<p><b>Governors aren't rushing to "just say no"</b></p>
<p>McConnell wrote an <a href="http://www.kentucky.com/2015/03/03/3725288_states-should-reject-obama-mandate.html?rh=1">op-ed</a> and a <a href="http://www.mcconnell.senate.gov/public/index.cfm?p=newsletters&amp;ContentRecord_id=d57eba06-0718-4a22-8f59-1e610793a2a3&amp;ContentType_id=9b9b3f28-5479-468a-a86b-10c747f4ead7&amp;Group_id=2085dee5-c311-4812-8bea-2dad42782cd4">letter to governors</a> urging states not to cooperate with the Environmental Protection Agency's Clean Power Plan. But governors aren't rushing to jump on his bandwagon. They know that if a state doesn't write its own clean air plan, then the Clean Air Act requires EPA to regulate the state's power plants directly. Most power companies would rather see states shape the rules, and most governors believe they can do a better job than EPA.</p>
<p>And more and more governors - <a href="http://www.michigan.gov/documents/150313_Energy_Message_FINAL_484033_7.pdf">witness Michigan's Rick Snyder</a> - are awakening to the economic and job creation opportunities of clean energy. The <i>Washington Post</i> <a href="http://www.washingtonpost.com/news/energy-environment/wp/2015/04/01/the-decline-in-coal-jobs-in-one-chart/">reported</a> yesterday that the wind, solar, and natural gas industries created 174,000 new jobs in the last five years, while coal employment fell by 50,000.</p>
<p>Most governors greeted McConnell's letter with polite silence. Not <a href="http://www.nbcnews.com/storyline/california-drought/california-governor-calls-out-mcconnell-coal-letter-n327896">California's Jerry Brown</a>: "[T]o have the leader of the Senate, Mr. McConnell representing his coal constituents, ... putting at risk the health and well being of America, is a disgrace." And here, in full, is <a href="http://www.courier-journal.com/story/watchdog-earth/2015/03/27/governors-respond-to-mcconnell-epa-defiance-letter/70534604/">Vermont Gov. Peter Shumlin's</a> letter back to McConnell: "I disagree. Climate change is real. It's a threat to humanity. We should be working harder to address it, not rolling back efforts to do so. I fully support the Environmental Protection Agency's plan."</p>
<p>Not one governor has yet pledged to refuse to submit a state plan. So McConnell's not getting traction here.</p>
<p><b>Less than 60 votes </b></p>
<p>One reason Sen. McConnell may be writing letters is that he is having trouble writing legislation. Last week, the Senate considered hundreds of non-binding amendments to its budget resolution in a spectacle known as the "vote-a-rama." Two amendments were proposed relating to the Clean Power Plan. Neither passed - in fact, one wasn't even brought to a vote.</p>
<p>With great fanfare, McConnell himself offered an odd amendment purporting to revoke a power that EPA does not even have. The amendment would have prohibited EPA from taking away federal highway funding from a state that refuses to write its own state plan to implement the Clean Power Plan. This amendment would have accomplished nothing, because EPA does not now have the power McConnell sought to yank. In any case, McConnell's amendment garnered only 57 votes - short of the 60 needed to pass.</p>
<p>The second amendment, sponsored by Sen. Rob Portman (R-OH), would have been far more pernicious. The Portman amendment would have made the Clean Air Act merely <i>optional</i>. A state could "opt out" simply by declaring that meeting carbon standards <i>would cost the polluters money</i> - that compliance would "impair investments in existing electric generating capacity."</p>
<p>By repealing the national guarantee that makes the Clean Air Act work - the requirement that EPA step in with federal pollution limits if a state chooses not to act - Portman's amendment would have taken us back fifty years to the dark days when polluters could play states off against each other - when there were no national rules to level the playing field and there was no federal back-up when states failed to act.</p>
<p>Yet McConnell chose not to bring Portman's amendment to a vote. We can only speculate why, but a good guess may be that it would have gotten <i>fewer </i>votes than McConnell's highway funding nothing-burger.</p>
<p>As Portman hinted in a <a href="http://www.eenews.net/eedaily/2015/03/27/stories/1060015889">vote-a-rama post-mortem</a>: "I don't know, at the end of the day, if there are 60 votes for any of these alternatives."</p>
<p>That's the central point. McConnell has not yet found a way to pass actual legislation to trim the sails of the Clean Power Plan, even symbolically.</p>
<p><b>Messing in foreign policy</b></p>
<p>This week Sen. McConnell sternly warned leaders of other countries to "<a href="http://www.mcconnell.senate.gov/public/index.cfm?p=PressReleases&amp;ContentRecord_id=9d042b43-cbc5-4ffb-8cca-2e4125f769d2&amp;ContentType_id=c19bc7a5-2bb9-4a73-b2ab-3c1b5191a72b&amp;Group_id=0fd6ddca-6a05-4b26-8710-a0b7b59a8f1f&amp;MonthDisplay=3&amp;YearDisplay=2015">proceed with caution</a>" before making any global climate deal. Speaking the same day that the United States announced its carbon commitments for the Paris climate negotiations - to cut U.S. carbon pollution 26-28 percent from 2005 levels by 2025 - McConnell plainly hoped to sow doubts in foreign capitals about the reliability of our country's readiness to act.</p>
<p>Members of Congress used to respect the president's constitutional role to speak for our country with one voice in foreign affairs. But like the recent letter from 47 Republican Senators to the Iranian mullahs, McConnell's "just say no" message to foreign leaders shows that those days are gone.</p>
<p>The hypocrisy in McConnell's call is striking. Republicans used to argue against U.S. action to curb carbon pollution because they claimed it wouldn't be matched by action abroad. Now they're arguing against action abroad because, they claim, it won't be matched by action at home.</p>
<p>The bottom-line question for foreign observers, however, is how much of a threat does Sen. McConnell's opposition really pose?</p>
<p>The conclusion they should draw is that the Senate majority leader lacks the votes to change the Clean Air Act, and he lacks the clout to get governors to reject the Clean Power Plan. And since he lacks the leverage to block our commitment to action at home, he cannot block America's commitment to a meaningful climate agreement in Paris this fall.</p>
<p>President Obama has set the United States on a course for real and durable climate action here and abroad. Mitch McConnell doesn't hold the cards to change that.</p>
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